Cavin v. The City of Chicago, Illinois et al

Filing 120

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 5/18/2011:(mb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALANA JONES,
Plaintiff,
vs.
CITY OF CHICAGO, RICHARD WISER,
LUKE KELLY, EDWARD WODNICKI,
VITO FERRO, and BARRETT MORAN, JR.,
Defendants.

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Case No. 08 C 3501

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Yahree Cavin sued the city of Chicago and several Chicago police officers in
relation to his arrest and prosecution for armed robbery. He asserted federal due
process and conspiracy claims as well as state-law claims of malicious prosecution and
civil conspiracy. Cavin died on December 20, 2010, and subsequently Alana Jones, the
mother of Cavin’s son, was substituted as the plaintiff pursuant to Federal Rule of Civil
Procedure 25(a)(1). Defendants have moved for summary judgment on all of Jones’s
claims. For the reasons stated below, the Court grants the motion.
Background
On the evening of November 7, 2005, armed individuals wearing masks robbed a
McDonald’s restaurant located on Navy Pier in Chicago. Cavin, an eighteen-year-old
high school senior, was present during the robbery, as were McDonald’s employees
Sonya Thorne and Tanisha Clark. Cavin had been employed at the restaurant during

the previous six months. According to Thorne, who was Cavin’s manager, Cavin had
been terminated the previous week. During the robbery, the armed individuals took
Thorne and Clark into a back office at gunpoint, leaving Cavin in the main area of the
restaurant. They then forced Thorne to open a safe and took out two plastic bags
containing an unspecified amount of cash. The individuals ultimately left Thorne and
Clark in the office and were never identified or apprehended.
Jeff Johnson, a Navy Pier security guard, was the first person to respond to a
security call reporting the robbery. Johnson testified at his deposition that when he
arrived at the McDonalds, the store’s security gate was closed. He also saw a young
man running around and jumping in the main dining area of the restaurant. Johnson
called out to the person and asked him whether everything was alright. According to
Johnson, the person did not tell Johnson about the robbery or ask him to call the police.
When the police eventually arrived, Johnson told them about this encounter. Plaintiff
admits this person was Cavin. See Pl.’s Resp. to Defs.’ LR 56.1(A)(3) Stmt. of Facts ¶
42 (“Admit that security guard Johnson talked to the responding detectives and told
them about his conversation and questions with Cavin”) (emphasis added).
Officers Richard Wiser and Luke Kelly arrived at the restaurant at approximately
9:37 p.m. When the officers attempted to open locked glass doors to enter the
restaurant, they saw Cavin standing inside the restaurant near the counter area. Both
officers testified that Cavin looked at them and then disappeared toward the back of the
restaurant. The officers forced their way in and reached the back office. They did not,
however, find Cavin in that area or elsewhere in the restaurant, nor did they see him
leave the restaurant.
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Thorne and Clark let the officers into the back office. Thorne told them that she
had seen Cavin outside of the restaurant earlier and did not know why he was there.
She also stated that Cavin had reappeared near the restaurant’s side door holding food
trays just as Thorne and Clark opened the door to leave. According to Clark, Cavin
asked Thorne if he could put the trays in the back of the restaurant. After Thorne gave
him permission, Cavin entered the restaurant. Immediately after he came in, the armed
individuals came out of a bathroom outside the McDonald’s and rushed into the
restaurant behind Cavin, pointing guns at Thorne and Clark and demanding money from
the safe. Thorne and Clark told the officers that Cavin had been fired from his job at the
restaurant about one week before the robbery.
Officers Wiser and Kelly later encountered Cavin outside of the restaurant, which
he had apparently left via another exit. The officers took Cavin into custody and
handcuffed him. They also spoke with two Chicago police detectives, Vito Ferro and
Barrett Moran, about what they had learned. Officer Wiser told the detectives about
Thorne and Clark’s explanation of Cavin’s presence at the restaurant door seconds
before the armed individuals entered. The detectives also interviewed Thorne and
Clark separately.
Later, Moran read Cavin his rights under Miranda v. Arizona, and two other
police officers transported him to the Area 3 police station. During the trip to Area 3,
Cavin told the officers that no one entered the restaurant after he did; someone pointed
a gun at him and told him to get on the ground; he went to the restaurant to see Thorne;
and he had intended to jump over the counter in the restaurant, but did not because he
was threatened with a gun.
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The detectives also went to the Area 3 station, where they were met by Assistant
State’s Attorney Sabra Ebersol. ASA Ebersol was the felony review attorney assigned
to the case. The detectives told ASA Ebersol about the circumstances of the robbery
and Cavin’s arrest. At her deposition, ASA Ebersol testified that she interviewed Cavin
and three other people who witnessed the events surrounding the robbery, including
Thorne and Clark. After speaking with the witnesses and reviewing a general offense
case report created by Officer Wiser, ASA Ebersol concluded that there was probable
cause to charge Cavin with armed robbery.
After being charged, Cavin was held at Cook County Jail for approximately
twenty-five months. Before the case proceeded to trial, however, the charges were
terminated after the prosecution moved to nolle prosequi the charges. Assistant State’s
Attorney Sharon Kanter, who was also assigned to Cavin’s case, testified that the
decision to nolle prosse the charges reflected the proecution’s view that it could not
satisfy its burden of proof at trial. Cavin filed the present action on June 18, 2008. It
was transferred to the undersigned judge’s docket in late October 2010 after the
retirement of Judge Wayne Andersen.
Discussion
On a motion for summary judgment, the Court “view[s] the record in the light
most favorable to the non-moving party and draw[s] all reasonable inferences in that
party’s favor.” Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir.
2010). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In other words, a court may grant summary judgment
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“where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
1.

Federal claims
Of the four claims Jones asserts, two arise under federal law. In count one of her

complaint, Jones contends that defendants withheld material exculpatory information
from Cavin and the prosecutors in violation of the rule set forth in Brady v. Maryland,
373 U.S. 83 (1976), thereby causing Cavin to be charged with armed robbery and held
in jail for over two years. In count two, Jones argues that defendants violated 42 U.S.C.
§ 1983 by conspiring to conceal the above misconduct and ensure that Cavin’s
prosecution continued despite the absence of probable cause.
a.

Due process/Brady claim

Jones contends that by “fabricating evidence” and “withh[o]ld[ing] exculpatory
evidence in order to mislead the prosecution,” defendants violated Cavin’s right to due
process. Pl.’s Resp. in Opp. to Defs.’ Mot. for Summ. J. at 19 (“Pl.’s Resp.”).
Defendants argue that they are entitled to summary judgment on this claim because the
charges against Cavin were dismissed and “[t]here can be no violation of a trial right
when there is no trial.” Defs.’ Summ. J. Mem. at 4.
In Brady, the Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87. A plaintiff states a viable due process
claim under 42 U.S.C. § 1983 when he contends that he did not receive a fair trial due
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to the prosecution’s withholding of material exculpatory evidence. See Newsome v.
McCabe, 256 F.3d 747, 752 (7th Cir. 2001). The Seventh Circuit recently held,
however, that a plaintiff cannot maintain such a claim if the case against him did not
proceed to trial. Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011) (“Ray has
failed to identify a single instance . . . where we have allowed such suits where the
individual is merely charged with a crime, but never fully prosecuted”).
The parties agree that no trial occurred on the charges against Cavin.
Accordingly, Cavin’s due process claim cannot succeed. Cf. Garcia v. City of Chicago,
24 F.3d 966, 971-72 (7th Cir. 1994) (concluding that, where prosecutor sought a nolle
prosequi dismissal prior to trial, “[defendant’s] right to due process of law was satisfied”
and no Brady claim arose). Defendants are therefore entitled to summary judgment on
count one.
b.

Section 1983 conspiracy claim

In count two, Jones alleges that defendants conspired to deprive Cavin of his
constitutional rights by withholding materially exculpatory evidence. This claim also fails
as a matter of law. “For liability under [section] 1983 to attach to a conspiracy claim,
defendants must conspire to deny plaintiffs their constitutional rights: there is no
constitutional violation in conspiring to cover up an action which does not itself violate
the constitution.” Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996) (emphasis added). As
discussed above, the undisputed facts would not permit a reasonable jury to find that
Cavin suffered a violation of his constitutional rights as a result of defendants’ alleged
withholding of evidence. Defendants are therefore entitled to summary judgment on
Jones’s conspiracy claim. Cf. Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir.
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2000) (where trier of fact found no constitutional injury, plaintiff could not recover on
conspiracy claim).
2.

State law claims
a.

Malicious prosecution claim

In count three, Jones contends that defendants are liable for malicious
prosecution based on their role in arresting and prosecuting Cavin for armed robbery.
Defendants counter that summary judgment is appropriate because (1) there was
probable cause to arrest Cavin, (2) the criminal proceedings were not terminated in
Cavin’s favor, and (3) defendants did not commence or continue the proceedings
against Cavin.
The parties agree that Illinois law governs Jones’s state law claims. “To prove
the tort of malicious prosecution, a plaintiff must demonstrate: (1) that defendants
began or continued the original criminal proceeding; (2) plaintiff received a favorable
termination; (3) probable cause did not exist; (4) malice was present; and (5) plaintiff
suffered damages.” Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 96, 887 N.E.2d 656,
662 (2008) (citing Swick v. Liautaud, 169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242
(1996)). If any one of these elements is not satisfied, the plaintiff’s claim fails. Id. In
particular, the existence of probable cause defeats a claim of malicious prosecution.
Ely v. Nat’l Super Markets, Inc., 149 Ill. App. 3d 752, 758, 500 N.E.2d 120, 124 (1986).
Based on the undisputed facts, the Court concludes that no reasonable jury
could find that defendants did not have probable cause to arrest and charge Cavin.
Under Illinois law, “[p]robable cause is a state of facts that would lead a person of
ordinary care and prudence to believe or entertain an honest and sound suspicion that
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the accused committed the offense charged.” Fabiano v. City of Palos Hills, 336 Ill.
App. 3d 635, 642, 784 N.E.2d 258, 266 (2002). The existence of probable cause is
determined as of “the time of subscribing a criminal complaint.” Ely, 149 Ill. App. 3d at
758, 500 N.E.2d at 124. “A reasonable ground for belief of an accused’s guilt may be
on information from other persons as well as on personal knowledge,” and “[w]here the
victim of the crime supplies the police with the information forming probable cause,
there is a presumption that this information is inherently reliable.” Sang Ken Kim v. City
of Chicago, 368 Ill. App. 3d 648, 655, 858 N.E.2d 569, 575 (2006) (internal quotation
marks omitted).
Defendants had information sufficient to give a person of ordinary care an
“honest suspicion” that Cavin was involved in the robbery. It is not genuinely disputed
that Thorne told Officers Wiser and Kelly that Cavin had been fired a week before the
robbery and that she was not expecting Cavin when she saw him outside of the
restaurant. Hearing these facts likely would lead a prudent police officer to believe that
Cavin may have had a motive to participate in the robbery and to suspect that Cavin’s
presence at the restaurant that day was not entirely innocent.
It is likewise not genuinely disputed that both Thorne and Clark told the officers
that the masked gunmen rushed into the restaurant immediately after they opened the
door for Cavin, who had asked permission to enter to take some food trays inside the
store. These statements indicated that Cavin’s unanticipated and somewhat unusual
appearance at the doorway occurred immediately prior to the appearance and entry of
the gunmen. A prudent person in the officers’ position would have a sound basis to
believe that the events were related and Cavin had tricked Thorne and Clark into
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opening the locked door so that the armed individuals could enter.
Finally, the officers had seen Cavin inside the store and observed that he saw
them and then disappeared from their sight, and they were aware that he was next seen
outside the store. This would have indicated to a prudent police officer that Cavin had
attempted to flee or warn other participants that the police had arrived. The police also
had the statement of security guard Johnson, who reported that he had spoken with
Cavin while Cavin was still inside the restaurant–either during or after the robbery–and
that Cavin said everything was fine and did not ask for help. Though Jones appears to
deny that Johnson actually had this interaction with Cavin, it is not genuinely disputed
that this is what Johnson told the police. There is no basis in the evidence that would
have led a reasonable police officer to doubt the veracity of what Johnson reported.
Johnson’s comments would have suggested to a prudent person that Cavin had
attempted to divert attention from the robbery, further implicating him as a potential
accomplice.
In sum, no reasonable jury could find that the information the police had would
not cause a person of ordinary care and prudence to entertain a firm suspicion that
Cavin had participated in the robbery.
Jones argues that defendants charged Cavin simply because he decided to seek
the advice of a lawyer. Pl.’s Resp. at 8 (“When [Cavin] became too afraid to continue
talking, he asked to speak to a lawyer. . . . Det[ective] Ferro took this as a sign of guilt. .
. . Because Cavin ‘lawyered up’ he would be charged with the crime.”). But even if true,
this does not defeat the existence of probable cause to charge Cavin. The existence of
probable cause is determined based on what a “person of ordinary caution and
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prudence” would believe, not what the individual officers subjectively thought. Fabiano,
336 Ill. App. 3d at 642, 784 N.E.2d at 266; see also People v. Wear, 229 Ill. 2d 545,
567, 893 N.E.2d 631, 644 (2008) (rejecting a similar argument: “[I]t is irrelevant that
Officer Dawdy did not form the intent to arrest Wear until he was inside, because, based
on objective circumstances, he retained the ability to arrest him when he was outside”).
Even if Cavin’s request for a lawyer played a role in the officers’ determination of
whether to seek or institute criminal charges, this does not detract from the existence of
probable cause.
Jones also contends that the defendant officers included false and misleading
information in their written reports on the robbery, thereby misleading ASA Ebersol into
charging Cavin. The parties agree that ASA Ebersol reviewed one of these reports
(Wiser’s general offense case report) and received a briefing from detective Ferro
before making her probable cause determination. As noted above, however, Jones also
concedes that “ASA Ebersol interviewed Cavin after she interviewed Thorne and Clark.”
Pl.’s Resp. to Defs.’ LR 56.1(A)(3) Stmt. of Facts ¶ 57 (emphasis added). She also
concedes that ASA Ebersol testified that she independently interviewed the witnesses
and that, in her recollection, the witnesses’ stories were similar to the contents of the
general offense case report. As such, even if the defendant officers included
misleading facts in their written and oral reports to ASA Ebersol, Ebersol’s own
investigative efforts independently support a finding of probable cause to charge Cavin.
For the reasons stated above, the Court concludes that no reasonable jury could
find that defendants lacked probable cause to charge Cavin with armed robbery. The
Court thus need not consider defendants’ remaining arguments. Defendants are
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entitled to summary judgment on Jones’s malicious prosecution claim.
b.

Civil conspiracy claim

In count four, Jones alleges that defendants are liable for conspiring to cause
Cavin to be arrested and prosecuted without probable cause. In Illinois, “the elements
of a civil conspiracy are: (1) a combination of two or more persons, (2) for the purpose
of accomplishing by some concerted action either an unlawful purpose or a lawful
purpose by unlawful means, (3) in the furtherance of which one of the conspirators
committed an overt tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317, 807
N.E.2d 461, 470 (2004). As the third element of this test indicates, however, civil
conspiracy is not an independent tort: if a “plaintiff fails to state an independent cause
of action underlying his conspiracy allegations, the claim for conspiracy also fails.”
Thomas v. Fuerst, 345 Ill. App. 3d 929, 936, 803 N.E.2d 619, 626 (2004). Because
defendants are entitled to summary judgment on Jones’s state law claim for malicious
prosecution and Jones’s conspiracy claim is predicated on her malicious prosecution
claim, defendants are also entitled to summary judgment on count four. Cf. Siegel v.
Shell Oil Co., 656 F. Supp. 2d 825, 836 (N.D. Ill. 2009) (granting summary judgment in
favor of defendants on civil conspiracy claim “[b]ecause Siegel has failed to establish
his ICFA deceptive and unfair practices claim or his unjust enrichment claims”).
Conclusion
For the foregoing reasons, the Court grants defendants’ motion for summary
judgment [docket no. 77]. The Clerk is directed to enter judgment in favor of the
defendants. The trial date of June 13, 2011 and the final pretrial conference date of

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June 1, 2011 are vacated.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: May 18, 2011

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